July 03, 2014

July 25, 2014

July 02, 2014

Three-and-a-half months were all the time needed to get Indiana’s ban on same-sex marriage overturned.

Five lawsuits challenging the state marriage law were filed after the 2014 legislative session ended, the first dated March 7. On June 25, U.S. Judge Richard Young issued a ruling agreeing with plaintiffs that Indiana’s marriage law is unconstitutional.

Sanders

“It’s not exactly ho hum, but it is part of a larger pattern,” said Steve Sanders, professor at the Indiana University Maurer School of Law. He noted federal courts have struck down similar laws in other states.

Young, chief judge of the U.S. District Court for the Southern District of Indiana, granted summary judgment in part for the plaintiffs in Lee, et al. v. Pence, et al., 1:14-CV-00406; Fujii, et al. v. Pence, et al., 1:14-CV-00404; and Baskin, et al. v. Bogan, et al., 1:14-CV-0405. He found – as federal judges across the country have found – that Indiana’s law prohibiting same-sex couples from marrying violated the due process and equal protection clauses of the 14th Amendment.

In his ruling, Young acknowledged his decision was not the first.

“This court has never witnessed a phenomenon throughout the federal court system as is presented with this issue,” he wrote. “In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional.”

Young

Within hours of Young’s ruling, the Indiana attorney general’s office filed an emergency motion for stay pending appeal in U.S. District Court. However, when Young did not issue a ruling immediately, the state turned to the 7th Circuit Court of Appeals late in the day June 27.

Two hours later, the 7th Circuit granted the stay. The AG’s office borrowed a phrase from the same-sex plaintiffs by telling the Circuit Court that Young’s order threatened “irreparable harm” to the defendants because it alters the meaning of marriage in Indiana and it creates confusion.

Civic and religious

Young foreshadowed his historic decision when he ordered the state to recognize the same-sex marriage of Indiana residents Niki Quasney and Amy Sandler. The couple is part of the Baskin lawsuit, but they filed for emergency relief because Quasney is in the final stages of her battle with cancer.

Once that restraining order was issued, Sanders said there was no reason to believe that Young would reverse his thinking. Young was unlikely to come up with a reason to uphold Indiana’s marriage statute that other federal judges had not put forth in their respective marriage rulings.

Young concluded that, “In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street.”

Robert Katz, professor at Indiana University Robert H. McKinney School of Law, would have liked the decision to have made the distinction between civil marriage and religious marriage. He worries the decision might be interpreted as saying it is wrong for people to be opposed to marriage between same-sex couples in their religious life.

Katz is a member of the legal team representing the plaintiffs in Lee, et al. v. Pence, et al.

He believes many religious conservatives will continue to reject same-sex relationships.

Opponents of same-sex marriage have a civic duty, Katz continued, to explain their views in terms that can be understood by people who do not share their religious beliefs. And proponents have to recognize that “reasonable, kind and good Americans” can think same-sex relationships are morally wrong.

“To move forward, both sides must concede a difference between civil or state-sanctioned marriage and religious marriage,” Katz said.

Dismissal

As part of his ruling, Young dismissed the first marriage lawsuit filed, Love, et al. v. Pence, 4:14-CV-00015. Gov. Mike Pence was the only named defendant in the Love case.

The judge agreed with the attorney general that Pence was not the proper defendant. As governor, he neither issues marriage licenses nor performs any official function regarding marriage so the plaintiffs’ injuries were not caused by the governor and cannot be redressed by him.

Landenwich, attorney on the legal team representing the plaintiffs in Love, said Young’s analysis of the governor’s function was problematic for future constitutional questions.

She questioned who is in charge of the enforcement of state laws if not the governor. The ruling, she said, raises the larger issue of who is the proper defendant when there is challenge to the state statutes or constitution. Future plaintiffs may not know who to sue.

On June 30, Lambda Legal, the national gay rights organization that filed Baskin, asked the 7th Circuit for an emergency motion that would require Indiana to continue recognizing the marriage of Niki Quasney and Amy Sandler. Young had granted relief in a separate ruling that barred the state from enforcing its marriage laws to this couple specifically since Quasney is terminally ill.

Also, plaintiffs’ attorneys and the state are disputing the scope of the 7th Circuit’s stay. Both Lambda Legal and the American Civil Liberties Union of Indiana contend the same-sex marriages performed in the window between Young’s ruling and the Circuit Court’s stay are valid. The Indiana attorney general’s office said the status of the marriages is unclear and possibly something a court will need to determine.

Paul Castillo, attorney at Lambda Legal, said the validity question was answered after Utah’s ban on same-sex marriage was struck down in December 2013. After a stay was entered, the U.S. District Court for the District of Utah ruled in a separate case that vows exchanged during the window in the beehive state were valid.

Utah has filed a motion to stay.

Even while in legal limbo at the state level, Indiana same-sex couples who were married after Young’s decision may get recognition from the federal government. Castillo pointed out when a marriage law has been overturned in other states, the federal government has considered those marriages as valid even while a stay is in place.

Shift

Katz expects the debate over same-sex marriage will make a shift from the question of whether gays and lesbians can marry to whether individuals who are opposed have to facilitate the marriage.

Katz

The issue bubbled up in New Mexico in 2007 when a photographer, citing her religious beliefs, refused to take pictures of a same-sex ceremony. Since then, businesses in Colorado, New Jersey, Oregon, and Washington state have all objected to providing services for gay weddings.

Earlier this year the Arizona Legislature passed a bill that would have allowed business owners to refuse service to individuals for religious reasons. Arizona Gov. Jan Brewer vetoed the measure.

Katz said the business owners who are refusing to serve same-sex couples are not preventing the marriages but are clear that they do not want to do anything to help facilitate the union.

“It’s going to be ugly,” Katz said of the shift. “It’s going to be uglier” than the fight for same-sex marriage.•

ADVERTISEMENT

Marilyn Odendahl covers the Indiana General Assembly as well as law schools and bar associations across the state for the Indiana Lawyer. Prior to joining the Indiana Lawyer, she was a reporter for nearly eight years at The Elkhart Truth, in Elkhart, Ind., where she primarily covered business. She holds degrees from Ball State University and the University of Louisville.